BRIEF IN SUPPORT OF MOTION TO DISMISS TRIAL

The judge should not have to look through more than this introductory section to determine what the motion seeks from the court, why you are seeking it, and the reasons you should prevail. Put the essence of the argument in a “preliminary statement” or “summary of argument” at the beginning of the brief.

A footnote near the outset of the argument section will often suffice. Mentioning these principles in passing with one or two citations is fine, but do not devote substantial space to them. Judges deal repeatedly with many topics, such as the basic law of summary judgment, the principles governing motions to dismiss for failure to state a claim, and the scope of discovery.

Most judges do not need to read extensive expositions on well-known principles of law. The brief should be a tool of advocacy, not a repository of comprehensive information and theories, unless the case involves an issue of first impression. Don’t write an academic treatise on the law. List your points of law in order of importance and number them. Use the introduction as an opportunity to summarize why you should win and to provide the court with a road map for the balance of the brief. Don’t clutter the brief with irrelevant introductory material. State clearly and concisely exactly what you want the court to do, and why. You should also help the court by attaching copies of out-of-state authorities, and including parallel citations to the official reporter, as well as the West reporters. It is always good practice to include a table of contents and table of authorities.

Include tables, out-of-state authorities, and parallel citations.

The CPLR does not place restrictions on the length and contents of briefs, although individual judges may have their own requirements set forth in local rules. Attorneys should keep these considerations in mind when writing a brief, whether in support of or opposition to a motion. When a judge writes a memorandum of decision in a complicated case, he or she will use a well-written brief as a major resource. Even if the judge hears oral argument, the judge is likely to review the briefs and to rely heavily on them. In those counties, many motions are decided on the briefs without oral argument. In urban counties especially, briefs are particularly important. If the moving party filed a brief, the opposing party should file an opposing brief, unless its defense is based solely on factual matters that can be covered in affidavits and appendices. Opposing counsel may serve an opposition brief containing a statement of reasons why the motion should be denied, along with supporting authorities. The attorney cannot swear to the truth of a legal argument. If legal points are to be made, they should be set forth in a separate brief, and not shoehorned into an attorney’s affidavit. Motions rarely turn strictly on factual matters, and there is almost always some legal authority that should be cited in favor of the motion. In New York state courts, the moving party is not required to file a memorandum of law or brief in support of a motion, but should generally do so. In New York practice, “brief” and “memorandum of law” are used interchangeably to refer to the document providing legal authority and argument in support of a motion.

BRIEF IN SUPPORT OF MOTION TO DISMISS TRIAL

Excerpted from New York Civil Practice Before Trial by Michael H.

Brief in support of motion to dismiss